The securing of loans through notarial deeds with direct enforceability is facing fundamental changes. Can penalties that arise only after the deed was signed be effectively collected?
The long-standing practice whereby debtors will, as a precautionary measure, acknowledge in a notarial deed not only the principal but also future interest on arrears and contractual penalties has become more complicated. In recent judgments (case no. 20 Cdo 2680/2025 and case no. 20 Cdo 2841/ 2025), the Supreme Court confirmed that the unilateral acknowledgement of debt in the form of a notarial deed pursuant to Section 71a(2) of the Notarial Code is not enforceable in substance in respect of claims that did not exist at the time the notarial deed was drawn up.
In both of the above-mentioned cases, the Supreme Court concluded that:
- The notarial deeds were drawn up in accordance with Section 71a of the Notarial Code at a time when the debtor was not yet in default (in one case, the notarial deed was drawn up at the same time as the loan agreement; in the other case, two days after the loan agreement was concluded).
- The right to claim default interest and contractual penalties (linked to future breaches of obligation) had therefore not yet arisen, and
- The debt did not yet exist at the time of acknowledgement.
The existence of the debt as a condition of enforceability.
Under Section 2053 of the Civil Code, the acknowledgement of a debt gives rise to a legal presumption that the debt, to the extent acknowledged, was in continued existence at the time of the acknowledgement. The Supreme Court concluded that it is not possible to validly acknowledge a debt that is yet to arise in the future. Consequently, if the debtor acknowledges the debt arising from a loan on the date it is granted, they cannot at the same time validly acknowledge default interest or contractual penalties linked to future breaches of obligation, as these claims do not in fact exist at that moment.
The accessory nature of ancillary claims is insufficient.
The courts rejected the creditors’ argument that ancillary claims (interest) should ‘share the fate’ of the principal. Default interest and contractual penalties are regarded as separate substantive claims. The fact that they are accessory to the principal does not mean that they can be recognised before a claim arises in respect of them as a result of the debtor’s default.
Implications for creditors’ practice.
This shift in case law brings an end to the common practice of creditors who, until now, used to comprehensively secure their claims at the same time as concluding a loan agreement or similar agreement.
Although a notarial deed drawn up at the same time as a loan agreement remains an enforceable title for the principal, such a notarial deed is unusable as an enforcement title for future penalties.
For creditors…
For creditors, this means three possible options: to time the drawing up of the notarial deed more carefully (only after the debtor has fallen into arrears), to replace the unilateral acknowledgement with a bilateral agreement in accordance with Section 71b of the Notarial Code, or to choose a different type of security.
Author: Hana Marešová, Associate, Dispute Resolution, LYNX Czech Republic
Source: Supreme Court ruling, ref. no. 20 Cdo 2680/2025 and 20 Cdo 2841/2025 Act No. 358/1992 Coll., on Notaries and their Activities (Notarial Code) Act No. 89/2012 Coll., the Civil Code